Independent MP Andrew Wilkie put it to Attorney General Mark Dreyfus on the final sitting day for the year that Labor “has undeniably declared war on whistleblowers”.
He questioned chief lawmaker over whether or not Labor would deliver on its promise to substantially redraft the Public Interest Disclosure Act 2013 (PID Act).
Wilkie’s query was prompted by a whistleblower prosecution saga, now in its seventh year.
Former Coalition Attorney-General Christian Porter started prosecutions against three whistleblowers and one lawyer, circa 2018, who Labor promised to protect after they found the 2013 PID laws were inadequate.
Dreyfus retorted that Wilkie would know he had put initial PID Act amendments in mid-last year to facilitate the National Anti-Corruption Commission.
But, as the AG said in late 2022, the changes were supposed to foreshadow a major overhaul of the law to be done in the year that just ended.
Dreyfus did not reply to Wilkie’s questions on the PID reforms; instead he talked up the PID Act, which he had drafted in 2013, and which he has also admitted still contained major gaps.
The campaign against whistleblowers in the final days of Scott Morrison’s Coalition government was substantial. That government sought to publicly punish them as an example to other would-be truth-tellers.
Former ASIS agent Witness K, his barrister Bernard Collaery, ex-ADF lawyer David McBride and Australian Taxation Office whistleblower Richard Boyle were all targeted.
“I was quite conscious that [the PID Act] was not a perfect scheme,” Dreyfus told the Canberra Times in October 2021. “It was an appropriate scheme but needed to be in operation for some years and then be reviewed.”
He said it was “shameful” the Coalition took four years to respond to Philip Moss’ 2016 review of the PID Act, which made 33 recommendations to improve the bill.
Dreyfus said back then that Labor intended “to act on Philip Moss’ recommendations for necessary improvements”.
But last week, Dreyfus told Wilkie it was regrettable that “the former government failed to act on that 2016 review by Mr Philip Moss”.
“We did act”, he said. “This was the first significant public sector whistleblower reform since the [PID Act] was first enacted a decade ago.”
The PID Act was significant as there had been no federal law to protect whistleblowers within the public sector.
By the time Labor was elected last year, Dreyfus and other experts all agreed that the law was still wanting.
Dreyfus defended his decade-old law by saying that Labor had “legislated a scheme of whistleblower protection in 2013” and just in the last year “there were 684 public interest disclosures”.
Far from there being no protection, he argued, “there is protection for whistleblowers”.
The fact that public sector employees were able to blow the whistle simply means they were able to make disclosures internally. The matters were either cleared up or the employee forgot about it: it’s only after a whistleblower has gone to the media and charges have been laid against them that PID protections are tested.
Protecting whistleblowers?
Former ASIS agent Witness K revealed information regarding the John Howard Coalition having bugged the Timor-Leste cabinet rooms in 2004 to gain an advantage in negotiations over the maritime boundary and ownership of fossil fuel resources.
Witness K went to the media with the assistance of his ASIS-approved lawyer Collaery.
Intelligence information or information relating to an intelligence agency, however, is not disclosable under the PID Act. Therefore, both men were not protected by Dreyfus’ laws in revealing this government corruption. Witness K went on to plead guilty to the charges and, in mid-2021, they were given a three-month suspended sentence.
Dreyfus as the newly incumbent AG decided to drop the charges against Collaery in July 2022.
The AG has the power to end any Commonwealth prosecution, when the office bearer considers that is what justice calls for. This power is contained in section 71 of the Judiciary Act 1903.
However, after exercising this discretion for Collaery, Dreyfus has not done the same for former Australian Defence Forces lawyer David McBride and Richard Boyle.
The main difference between Collaery and Witness K and McBride and Boyle was that the former is not a public servant.
McBride blew the whistle to the ABC over ADF behaviour in Afghanistan. This led to The Afghan Files in 2017, which exposed Special Air services Forces as committing multiple war crimes.
McBride is now behind bars — serving a 5 year and 8 month prison term with non-parole at 2 years and 3 months.
The PID Act failed McBride as when he went to argue his public interest disclosure defence in October 2022, authorities blocked his ability to do so, via a mechanism that permits a prosecution to remove evidence on national security grounds.
The same thing happened regarding his evidence at his trial in November last year, which left him no choice but to plead guilty.
Last man standing
The truth regarding the PID Act is that only one whistleblower has ever argued their defence under it. This person was Richard Boyle.
When he did this in October 2022, the South Australian District Court found that he was protected by the law. However, it also found him to be unprotected.
Boyle blew the whistle on the ATO misapplying a garnishee process: agents were told to dip into small business accounts to recover debts without any notification as the tax office wanted its end of financial year figures to look good.
SA Supreme Court Justice David Lovell ruled in June on Boyle’s appeal of his unsuccessful PID defence. He said Boyle was protected by the criminal immunity provided under section 10 of the PID Act, when he provided information to the ABC that informed the April 2018 report Mongrel Bunch of Bastards.
However, despite Boyle’s internal complaints leading to an end of the unlawful application of the garnishee process, and several inquiries since having vindicated his assertion that it was being wrongfully applied, the SA court also found that Boyle was not protected under the PID Act.
Boyle is now set to stand trial next November over 24 criminal offences that carry up to 46 years imprisonment.
The charges cover such things as taking photos of taxpayer information, covertly recording conversations with his fellow employees and uploading this information onto an email account that was never accessed.
Dreyfus said Labor is “progressing a second, broader stage of reforms”, which include a consultation paper on additional supports for public sector whistleblowers.
The November 2023 consultation paper looks at whether “preparatory” acts, or the same behaviour that Boyle is facing close to 50 years inside for, should be protected under an overhauled PID Act.
Two stark questions unanswered.
This leaves questions unanswered: will the “broader stage of” PID reforms progress in this term of parliament and will they will include protections for whistleblowers such as Boyle?
These questions raise a third: As Boyle is set to stand trial next November, what will happen to him if Labor loses the next election?
If Dreyfus really does care about whistleblowers, he could exercise his power and release Boyle today as the courts have already determined that his exposure of government wrongdoing was in the public interest.
[Paul Gregoire is a Sydney-based journalist and writes for Sydney Criminal Lawyers, where this article was first published.]